Tra incidente di costituzionalità e rinvio pregiudiziale: lavori in corso

Between Incidenter Review and Preliminary Reference: Work in Progress. The essay discusses Italian Constitutional Court decisions 269/2017 and 20, 63, 112, 117/2019 on the question of double «incidentality». This situation emerges when a preliminary reference is sent to the CJEU, at the same time as a question of unconstitutionality is referred to the national Constitutional Court. The essay argues that the Italian Court has been trying to regain a right of first word on questions of human rights protection in its incidenter proceedings. When read together, these decisions may suggest at least three conclusions: i) the role of the Constitutional Court keeps shrinking while the prerogatives and role of ordinary judges, thanks to the preliminary reference, keep increasing; ii) conflict between national Constitutions and the European Charter of Fundamental Rights may also increase; iii) through the doctrine of direct effects, some judges may be tempted to force the monopoly of the Con- stitutional Court on questions of legitimacy of ordinary laws. These scenarios may bring about the ultimate displacement of the central role of the Constitu- tional Court in the judicial review of ordinary laws with respect to fundamen- tal rights. It is in order to resist these scenarios that the foregoing decisions of the Italian Court seem to have overruled the Granital jurisprudence.